Under Part 5 of the Housing and Planning Act 2016, provision was made to allow for legislation to be created for electrical safety standards in private rented property.
The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 have now been published in draft form and must be approved by each House of Parliament.
A further in-depth analysis will follow when the final regs are published.
If approved in current form, the regulations will commence 1 June 2020 and new tenancies granted on or after 1 July 2020 must comply and from 1 April 2021 for all existing tenancies. The regulations apply to England only.
There are essentially two key duties and a private landlord must:
- ensure that the standards for electrical installations in the eighteenth edition of the Wiring Regulations, published by the Institution of Engineering and Technology and the British Standards Institution as BS 7671 are met during any period when the residential premises are occupied under a specified tenancy; and
- ensure every electrical installation in the residential premises is inspected and tested at intervals of no more than 5 years or, where the most recent report requires such intervals of less than 5 years, at the intervals specified in that report.
Ensuring Standards of 18th edition of the Wiring Regulations Are Met
This part does not appear to have been mentioned in much detail in other reports of these draft regulations but it is potentially a huge duty.
The way we read the regulations, it is not requiring the electrical installation to be simply “safe” (like for example a gas safety record). It’s requiring the electrical installation to meet the standard of the 18th edition. Does this mean every private rented electrical installation must be upgraded to the 18th edition? Must we replace consumer units with metal, replace older style cabling or change everything to RCBOs (just a short list of thoughts)? With thanks to a subscriber who has commented below this article and quite rightly points out:
Within BS 7671 (the 18th Edition and previous editions) it states: “Existing installations that have been installed in accordance with earlier editions of the Regulations may not comply with this edition in every respect. This does not necessarily mean that they are unsafe for continued use or require upgrading”.
We will have to wait and see how problematic this definition becomes and whether electrical contractors are going to issue reports requiring a full upgrade to 18th edition or will take a sensible approach simply ensuring the electrics are safe for continued use.
Inspection and Testing at Regular Intervals and Report
The inspection and test must be conducted by a qualified person.
It’s important to note that the proposed 5 yearly interval is a “maximum”. If the report says it only lasts for one year (which is common), it will have to be inspected and tested within one year. It will be essential for landlords to ask how long the report will last (subject to there being no changes of course) before they employ any electrician to conduct the inspection.
It’s been reported at various places that there must also be an inspection and test before a tenancy commences in addition to the maximum five years. This is not what the draft regulations say.
The FIRST inspection and testing must be carried out:
- before the tenancy commences in relation to a new specified tenancy (which is any tenancy granted on or after commencement of the regulations – proposed to be 1 July 2020) or,
- by 1st April 2021 in relation to an existing tenancy.
Note that the regulations do not require a report at every new tenancy. It’s only the first report which is before the tenancy commences (or before 1 April 2021). Once you have a report, the intervals apply (maximum five years depending on any date in the report).
The landlord must obtain a written report about the inspection and testing. The report must be given to the tenant within 28 days. A copy must be given to a local authority within 7 days if they request a copy.
The report must be retained until the next test is due and a copy must be given to the person who is carrying out the next inspection.
Similar to a gas safety record, the most recent report must be given to any new tenant before that tenant occupies the premises and it must also be given to any prospective tenant within 28 days of a request by them.
If the report requires further investigative or remedial work, that must be carried out within 28 days or less if the report requires it to be less. A written confirmation from a qualified person that the investigative and/or remedial work has been carried out must be obtained.
The written confirmation must be supplied to the tenant along with the original report (so they will now have a second copy of the same report) within 28 days. In addition, the local authority must be sent a copy of the original report and the written confirmation within 28 days even if no request has been made (the two documents must be sent to both tenant and local authority without any request being made within 28 days where further investigative or remedial action was required in the original report).
Local Authorities and Remedial Notices
If a local authority believe a landlord has not complied with the regulations, they may serve a remedial notice on the landlord requesting they comply with the duties.
Written representations and appeals are available to the landlord.
The local authority can arrange remedial action themselves (at the landlords cost).
If there is urgent remedial action required under the report (which is action immediately necessary in order to remove the danger present and risk of injury), there are further powers for a local authority to intervene.
A breach of the regulations can attract a penalty of up to £30,000. There can be multiple penalties in the event of a continuing failure to comply.
The draft regulations propose new mandatory conditions for licenses to ensure that every electrical installation is in proper working order and safe for continued use. The local authority may demand a declaration to that effect.
Tenancies Which Apply and Excluded Tenancies
A specified tenancy means a tenancy of residential premises in England which:
- grants one or more persons the right to occupy all or part of the premises as their only or main residence;
- provides for payment of rent (whether or not a market rent); and
- is not an excluded tenancy as specified in Schedule 1 of the Regulations.
The regulations therefore apply to all assured shorthold tenancies, assured tenancies and many contractual tenancies. The only notable exception in Schedule 1 (for the purpose of our readers) would be a genuine lodger letting as long as the occupier is sharing accommodation with the landlord or a member of the landlord’s close family. Sharing accommodation includes a toilet, personal washing facilities, a kitchen or a living room but excludes any area used for storage, a staircase, corridor or other means of access.
We have absolutely no objection for the requirement to obtain a safety report every five years for the electrical installation and ensure a copy is given to the tenant.
However, if it is the case that every rented property must be upgraded to the 18th edition, that would be an impossible task (yes, we truly believe impossible by 1st April 2021). Our own personal home doesn’t fully comply with 18th edition! In fact only refurbished properties and new builds since 2018/2019 will likely fully comply! As pointed out earlier though (again thanks to a subscriber for the comment), the 18th edition itself specifically says that not everything will require upgrading as long as it’s safe for continued use. In our view, there should have been a 3 year transition.
We will also have to hope that there will be enough electricians to choose from putting a 5 year next inspection date on reports.